Interested parties are watching the Environmental Protection Agency (EPA) closely for any indication of what EPA might do with its proposed Clean Water Act rule, that would clarify the definition of “Waters of the U.S.” and their Clean Water Act permitting jurisdiction.  The resulting rule may add countless water bodies to the list of federally controlled waters and could possibly greatly increase the situations for which farming activities would need to be permitted and make permitting even more costly.

EPA sent the rule to the Office of Management and Budget (OMB) for final interagency review in September last year.  While OMB review is supposed to take no more than  90 days, the measure has been under consideration for almost double that.  Agricultural groups that have concerns with the rule are reaching out to the White House, saying that, if such a rule goes forward, it could undermine other priorities of the administration, including job creation and energy independence.

The EPA rule is meant to provide greater clarity about which waters are subject to Clean Water Act jurisdiction and greater certainty about which activities require federal Clean Water Act permits.  EPA’s action stems from a series of U.S. Supreme Court rulings concerning the extent of waters covered by the Clean Water Act.  At the same time that EPA’s proposed rule went to OMB, EPA released a draft report for public comment “Connectivity of Streams and Wetlands to Downstream Waters,” that basically concludes the idea that all waters are connected, which, in turn, supports the idea that all waters are essentially “Waters of the U.S.” under the Clean Water Act and fall under federal jurisdiction.